https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11596

Kamicha v Republic (Criminal Appeal E025 of 2020) [2026] KEHC 11596 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 11596 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Appeal E025 of 2020 AM Muteti, J June 24, 2026 Between Elizabeth Wambui Kamicha Appellant and Republic Respondent Ruling 1.The applicant by way of a Notice of Motion expressed to be brought under Article 50 (2) (q) of the Constitution and Section 358 of the Criminal Procedure Code moved this court for orders that: -i.The Honorable court shall take additional evidence of Nicholas Mwangi Macharia Principal Cartographer working with Survey of Kenya and Deputy Land Registrar Mucheke Zubeda Yusuf.ii.In the alternative the Honorable court directs that the additional evidence of Nicholas Mwangi Macharia Principal Cartographer working with Survey of Kenya and Deputy Land Registrar Mucheke Zubeda Yusuf shall be taken by a subordinate court with jurisdiction to hear criminal matters.iii.The subordinate court shall certify the evidence to the High Court.iv.The accused or her advocate shall be present when the additional evidence is taken.v.Summons shall issue to Nicholas Mwangi Macharia Principal Cartographer working with Survey of Kenya and Deputy Land Registrar Mucheke Zubeda Yusuf for the purpose of taking their additional evidence based on statements recorded and dated 30th October 2024 and 22nd November 2024.vi.The honorable court grant such further or other relief that is deemed just and fair in the circumstances. 2.The application was premised on the following grounds;-a.There are fresh facts that have emerged relating to the authenticity of key prosecution exhibits relied on to convict the accused at the lower court.b.The said fresh facts emerged while the appellant was engaged in discovery processes in a matter relating to the facts that led to her conviction.c.On the 30th October 2024 and 22nd November 2024 respectively, the appellant spoke to Nicholas Mwangi Macharia Principal Cartographer working with Survey of Kenya and Deputy Land Registrar Mucheke Zubeda Yusuf who denied having authored documents that were adduced at the lower court and relied on to convict the appellant.d.The said Nicholas Mwangi Macharia Principal Cartographer working with Survey of Kenya and Deputy Land Registrar Mucheke Zubeda Yusuf recorded witness statement to the effect that they were not the authors of prosecution exhibits 3 (a) and (b) being letters relied on by the lower court in reaching a decision to convict the appellant at the lower courte.In the circumstances, it is only fair and just that the Orders sought are issued 3.The application was further supported by the affidavit of ELIZABETH KAMICHAR who deposed as follows;-a).that she is the appellant in the matter and had been accused of fraudulently registering land in her name.b).She further explained that after obtaining leave of the court she began verifying the authenticity of documents relied upon by the prosecution.c).On 30th October 2024 and 22nd November, 2024 she spoke to Nicholas Mwangi Macharia, a Principal Cartographer at Survey of Kenya, and Deputy Land Registrar Mucheke Zubeda Yusuf.d).According to her both officers denied authoring the disputed documents and denied ever visiting the land in question.e).The deponent further stated that she obtained certified copies of file records from the lands office relating to the complainant’s files and discovered inconsistencies in the evidence.f).She further deposes that the contradictions are important for the court to consider in determining the matter fairly.g).She also explained that during discovery processes in another related matter she extracted digital data from the documents and noticed discrepancies which, in her view, show that the records relied upon by the prosecution may not have been genuine.h)She therefore maintained that the evidence presented against her raises serious doubts regarding authenticity. 4.At the hearing of the application Mr Mwenesi urged the court to allow the taking of additional evidence on Appeal. 5.According to him the evidence could be done by this court or the Lower court and subsequently certified and sent to the High Court. 6.Counsel for the applicant cited Section 358 of the Criminal Procedure Code. 7.Counsel submitted that the Appellant was convicted in the Lower Court for obtaining registration of Title by false pretense. The conviction was based on key prosecution exhibits that were produced and testified on by 3rd party witnesses who were not the authors of the documents. PEX 3A & 3B. 8.He further submitted that Prosecution Exhibit 3A was a letter for conversion of title and surrender produced by PW1 (letter of 12/6/2015). 9.However, according to counsel for the applicant it later emerged in Thika ELC NO.117/2021 that the letter was in fact a forgery. 10.The fact of forgery was discovered after conviction of the appellant. 11.The alleged author of the letter was one Zubeda Mucheke a Deputy Registrar of lands. 12.Further, the applicant posited that during the civil proceedings they examined the documents and interviewed Mucheke Zubeda who recorded a statement in the civil matter. 13.She indicated that she was not the author of PEXH 3A which was heavily relied on by the trial court in the criminal matter giving rise to the appeal. 14.According to Counsel the lower court judgment quotes the letter verbatim at Page 14 of the judgment. 15.Zubeda did not testify in the criminal matter thus that fact could not have come to the fore during trial. 16.The denial of the letter would therefore mean that there was never a conversion or surrender of title and therefore the complainant in the Lower court cannot have held legal title against the accused person as suggested in the Lower court. 17.The second document was the letter produced as PEXH 3B. The letter was allegedly the one forwarding a registry index map in favor of the complainant in the Lower court. 18.The letter was allegedly written by Nicholas Mwangi Macharia who at the time of discovery in the Civil suit was a principal cartographer with the Survey of Kenya the same was dated 9th June 2015. 19.Mr Mwangi according to the applicant similarly disowned the letter. 20.The applicant submitted that there was no forensic evidence of examination of the documents in the criminal trial as well as in the civil case. 21.Mwangi Macharia did not also testify in the Criminal case. The applicant thus urged this court to find that the officer’s denials of the key documents would entitle the appellant to have the court have a second look at the matter. 22.The applicant argued that Section 358 allows the court to have the two officers called to give evidence in light of the matters raised in the instant application. 23.Mr Mogere Prosecution Counsel appearing for the respondent submitted that the principles governing the taking of new evidence on appeal are well settled in Mohammed Abdi Mohammed Vs. Abdi Abdullahi Mohammed 2018 eKLR. Counsel submitted that the principles include;-a.Evidence must be directly relevant to the matter before court and be in the interest of justice.b.Evidence must be such that if given it would influence or impact the result of the verdict.c.It is shown that it could not have been obtained with reasonable diligence during the trial. 24.Mr. Mogere submitted that the nature of evidence sought to be introduced is in the nature of a witness statements of one Nicholas Mwangi Macharia and Mucheke Zubeda in respect of the letters produced in the lower court during the criminal trial. 25.Counsel submitted that the conviction in the lower court was about obtaining registration by false pretences. 26.The relevance of the letters to the trial were in respect to Counts II and III in which the appellant was acquitted thus according to counsel the additional evidence if allowed to be taken would not impact on the conviction in Count I. 27.Further, counsel submitted that there was no forensic examination report done on the two letters to confirm that they were indeed forgeries thus if the intended evidence is taken it would be the word of the alleged authors against that of the civilian 3rd party witnesses. 28.According to Counsel for the state the signatures of the two intended witnesses should have been examined to confirm authenticity of the documents. 29.The trial was commenced on 9/10/2017 and concluded on 15/9/2020. The documents were in the hands of the appellants and he could have gotten in touch with the two witnesses not wait until after 3 years since commencement of the trial and try to undo the matter long after conclusion. 30.Counsel submitted that the Appellant/applicant had not discharged the burden of proving that the evidence would sway the verdict of the learned honorable magistrate thus the application should be dismissed. 31.The court has considered the arguments for and against the grant of the application for the taking of additional evidence. 32.The law governing the taking of additional evidence on appeal is basically that the evidence intended to be adduced should be new and important evidence whose discovery could not have been made before the conclusion of the trial in lower court through the exercise of reasonable diligence by the party seeking to adduce the evidence. It should be evidence that was unavailable to the party during the trial. 33.Section 358 (1) of the Criminal Procedure Code grants the High Court, for reasons to be recorded, the power to call for additional evidence at the hearing of an appeal. The section provides;- “In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.’’ 34.The key parameter for the High Court is whether it thinks additional evidence is necessary in the just determination of the appeal. 35.The Supreme Court in Patrick Thoithi Kanyuira v Kenya Airports Authority, Petition 7 of 2017 [2021] KESC 7 (KLR) restated the rule in Ladd v Marshall [1954] 1 WLR 1489 where Denning LJ stated; In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. 36.In the instant case the applicant / appellant has simply stated that the persons who allegedly authored the two letters she seeks to introduce have since denied being the authors. 37.The appellant had all along during the trial been supplied with the letters and she knew the alleged authors by name. 38.The applicant did not tell the court why she never thought it wise then, to contact the two authors if at all she doubted the genuineness of the documents. She did not demonstrate any aspect of diligence on her part during the trail in an attempt to get hold of the two witnesses she now intends to call. 39.Secondly, the applicant admitted that the two documents have not yet been subjected to any forensic examination to determine whether the allegations by the two intended witnesses are true. 40.As rightly submitted by counsel for the state their claim would be simply their word against the word of the prosecution witnesses. 41.This court cannot in the circumstances tell the probative value of the evidence intended to be adduced therefore the credibility of the evidence remains doubtful and as such the applicant has failed to persuade the court that the evidence if admitted would be incontrovertible and useful in the determination of the appeal. 42.The respondent also told the court that the counts in respect of which the documents would have been useful were dismissed thus the relevance of the documents is cast into further doubt. 43.in the end this court is not satisfied that the applicant/appellant has made a good case for the taking of additional evidence on appeal. 44.Accordingly, the application is dismissed in its entirety and parties are hereby directed to immediately set down the appeal for hearing taking into account its age. 45.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2026.A. M. MUTETIJUDGEIn the presence of:Habiba: Court AssistantMwenesi for AppellantMogere for the Respondent